High Court
Case Details
Arb.A. 2/2013 BEFORE HON’BLE MR. JUSTICE A.C. UPADHYAY This is an appeal under Section 37(1)(a) of the Arbitration and Conciliation Act, 1996, challenging the judgment and order dated 08.10.2012, pa ssed by the Additional District Judge, No.1, Kamrup, in Misc. (Arb) Case No.366/ 2012, under Section 9 of the Arbitration and Conciliation Act, 1996, whereby dir ection was issued to the parties in litigation to maintain Status-quo in respect of the suit land in question, described in Schedule-C of the petition. 2. Brief facts of the case is that the appellant is a Private Limit ed Company under the Companies Act, 1956, having its registered office at C-2054 , A Sushant Lok-1, Gurgaon, Haryana, and being represented by its Director Sri P radeep Harlalka. Whereas Respondent No.2 and other respondents are joint owners of different plots of land including the suit land and Respondent No.3 is a res ident of Boko, in the district of Kamrup. On mutual arrangement, the Respondent No.2 and the other respondents are occupying different plots of land and utilizi ng their share of land for their own purpose. 3. The Respondent No.2 for proper management, control and supervisi on of his share of land and also to develop his share of land described in the S chedule-A, appointed Respondent No.3 as his lawful attorney by executing Deed No .1259/11 dated 19.4.11 for doing the acts and deeds mentioned in the Irrevocable Power of Attorney, in favour of the Respondent No.3. Apart from that the said Irrevocable Power of Attorney, the Respondent No.2 earlier executed another reg istered Power of Attorney being Deed No.221/11 (corrected as 94/11 dated 10.01.1 1), in favour of the Respondent No.3. By the said Power of Attorney, the Respondent No.2 had given pow 4. er to Respondent No.3 to sell the plot of land mentioned in the Schedule of the said Power of Attorney and to receive consideration of such sale. By the said P ower of Attorney, the Respondent No.2 gave power to Respondent No.3 to apply for permission for such sell and after obtaining of such permission from the compet ent authority to receive sale price and to deliver possession of the land to the purchaser. That on the strength of the said registered Power of Attorney be 5. ing Deed No.221/11 dated 10.01.11, the Respondent No.3 on behalf of the Responde nt No.2 entered into an agreement with the appellant for sale of land measuring 36 Bighas 3 Kathas 2 Lechas covered by different Dag Nos. and Patta Nos., for to tal consideration of Rs.1,80,00,000/- and the said agreement for sale was regist ered as Deed No.897/11 dated 1.2.11. However, the Respondent No.2 revoked the P ower of Attorney on 13.6.2011, executed in favour of Respondent No.3 being Deed No.94/11 dated 10.1.11 and Deed No.1259/11 dated 19.4.11, which was earlier exec uted in favour of Respondent No.3 on 16.6.2011, a suit was filed by Respondent N o.3 against the Respondent No.2 for declaration and permanent injunction in resp ect of the revocation of Power of Attorney dated 10.1.2011. The suit was number ed as Title Suit No. 174/2011. However, the Respondent No.3 sought to withdraw the suit on the ground of amicable settlement of the dispute without seeking any liberty. Subsequently on 6.9.2011, the agreement for sale, which is the bone o f contention, executed by and between the Respondent No.1 and Respondent No.3 wa s also formally cancelled by mutually signing the deed of cancellation. In the meantime Respondent No.1 filed a suit against the Respondent No.2 to 6 seeking specific performance of the contract for sale and other consequential relief. The Respondent No.2 in a suit being T.S. No.342/11, had taken the plea that ther e was an arbitration clause in the agreement for sale and as such the matter sho uld be referred to the Arbitrator as per Arbitration Clause and accordingly the learned Civil Judge No.3 disposed of the title suit directing the parties to app ear before the Arbitrator to settle their dispute. In the meantime, the respond ents already sold out their respective shares to the appellant. The appellant st arted construction over the suit land and the respondents approached the Court o f District Judge under Section 9 of the Arbitration and Conciliation Act 1996, p raying for restraining the appellant in constructing any structure over the suit land. On an application filed u/s 9 of the Arbitration and Conciliation Act, 1 996, the learned Addl. District Judge, Kamrup, vide impugned order dated 8.10.12 granted Status-quo in respect of the suit land described in Schedule-C of the a pplication. 6. The appellants have challenged the impugned order dated 08.10.20 12 passed by the Court of the Additional Distirict Judge No. 1, Kamrup at Guwaha ti in Misc. (Arb) Petition No. 366 of 2012 inter-alia, on the following grounds: i) The Learned Court below failed to take note of the fact that the Agreement da ted 01.02.2011, which contained the Arbitration Clause was not an Agreement betw een the Proforma Respondent Nos. 2, 4, 5 and 6 with the Respondent No. 1 but was an Agreement between the Respondent No. 3 with the Respondent No. 1 and as such the Arbitration Clause could not have been invoked against the Proforma Respond ent Nos.2, 4, 5 and 6 as the said proforma Respondent were not parties to the Ag reement for Sale dated 01.02.2011. ii) A perusal of the Agreement dated 01.02.2011 would go to show that the Profor ma Respondent No. 3 had executed the said Agreement for and by himself and not a s an Attorney of the Proforma Respondent No. 2. A closer scrutiny into the terms of the Agreement dated 01.02.2011 would further go to show that the Proforma Re spondent No. 3 had executed the Agreement for and by himself stating inter-alia that he being the attorney and authorized representative of the Proforma Respon dent No. 2 was authorized to sell the land mentioned in the Power of Attorney. T his exercise of power by the Proforma Respondent No. 3 cannot be equated with a circumstance where the Agent signs for and on behalf of the Principal. In order to substantiate the above facts, the appellant drew the attention of the Court t o the following extracts of the Agreement for Sale, which are quoted herein belo w:-
Facts
(cid:28) SRI PRANAB MAHANTA, son of Late Padma Kanta Mahanta, aged about 40 yea rs, by occupation business, by faith Hindu, and a resident of Boko Police Statio n, in the District of Kamrup(S), Assam, hereinafter referred to as (cid:28)PROSPECTIVE SELLER/FIRST PARTY (cid:29) (which expression shall unless repugnant to the context and meaning therof shall include his heirs, executors, administrators and assigns) o f the FIRST PART; (cid:29) (cid:28)WHEREAS, the ’PROSPECTIVE SELLER/FIRST PARTY’ is the duly constituted Attorney and Authorised Representative of the absolute owner of the Scheduled Plot of Lan d, namely, Sri Bhupendra Sing Anand, son of late Santosh Singh Anand of Fatasil, Kalapahar, Guwahati-35,(Reference: Irrevocable General Power of Attorney, dated 10.01.2011, Sl. No. 275 and Deed No. 94 and Deed of Agreement, dated 10.01.2011 , Sl. No. 276 and Deed No. 221. ) (cid:29)
Legal Reasoning
In our view, a bare reading of this provision namely, second part of Ord (cid:28)7. er 1 Rule 10 sub-rule (2) of the CPC would clearly show that the necessary parti es in a suit for specific performance of a contract for sale are the parties to the contract or if they are dead their legal representatives as also a person wh o had purchased the contracted property from the vendor. In equity as well as in law, the contract constitutes rights and also regulates the liabilities of the parties. A purchaser is a necessary party as he would be affected if he had purc hased with or without notice of the contract, but a person who claims adversely to the claim of a vendor is, however, not a necessary party. From the above, it is now clear that two tests are to be satisfied for determining the question who is a necessary party. Tests are - (1) there must be a right to some relief agai nst such party in respect of the controversies involved in the proceedings (2) n o effective decree can be passed in the absence of such party. (cid:29) 18. Learned counsel for the appellant pointed out that there is no s cope for the appellant to participate in the Arbitration proceedings in view of the well established principle of law that it is only the parties to the Arbitra tion Agreement, who can be parties to the Arbitration proceeding. In order to es tablish the aforesaid submission, learned counsel for the appellant relied on th e decision of the Apex Court rendered in the case of S.N. Prasad, Hitek Industri es (Bihar) Ltd. Vs. Monnet Finance Ltd. & Ors, reported in (2011) 1 SCC 320, whe rein it was observed as follows: (cid:28)8 &..Thus there can be reference to arbitration only if there is an arbitration agreement between the parties. The Act makes it clear that an Arbitrator can be appointed under the Act at the instance of a party to an arbitration agreement only in respect of disputes with another party to the arbitration agreement. If there is a dispute between a party to an arbitration agreement, with other parti es to the arbitration agreement as also non-parties to the arbitration agreement , reference to arbitration or appointment of arbitrator can be only with respect to the parties to the arbitration agreement and not the non-parties. 24. The apprehension of the first respondent that an anomalous situation may ari se if there are two proceedings (one arbitration proceedings against the borrowe r and one guarantor and a suit against another guarantor), is not a relevant con sideration as any such anomalous situation, if it arises, would be the own-makin g of the first respondent, as that is the consequence of its failure to require the appellant to join in the execution of the loan agreements. Having made only one of the guarantors to execute the loan agreements and having failed to get th e appellant to execute the loan agreements, the first respondent cannot contend that the appellant who did not sign the loan agreements containing the arbitrati on clause should also be deemed to be a party to the arbitration and be bound by the awards. The issue is not one of convenience and expediency. The issue is wh ether there was an arbitration agreement with the appellant. 25. As there was no arbitration agreement between the parties (the first respond ent and appellant), the impleading of appellant as a respondent in the arbitrati on proceedings and the award against the appellant in such arbitration cannot be sustained. As a consequence, both the arbitration awards, as against the appell ant are liable to be set aside. If the first respondent wants to enforce the all eged guarantee of the appellant, it is open to the first respondent to do so in accordance with law. (cid:29) 19. Mr. Baruah, learned counsel for the appellant submitted that the Arbitral Tribunal would have no jurisdiction to arbitrate upon the instant disp ute and to pass an effective award in as much as, on date, the lands in question have already been sold by Registered Deeds of Sale and mutations have been gran ted in favour of the Appellant. As on date, the Proforma Respondent No. 2, 4, 5 and 6 has no authority in respect to the Schedule-’C’ land and as such the Arbit ral Tribunal would not be in a position to enforce the Agreement dated 01.02.201 1 without first setting aside the Deeds of Sale executed in favour of the Appell ant. Learned counsel for the appellant further pointed out that the said Deeds o f Sale cannot be set aside and cancelled by the Arbitral Tribunal primarily for two reasons- i) without the presence of the Appellant, the Sale Deeds executed i n favour of the Appellant cannot be set aside and cancelled and as already submi tted herein above, the Appellant cannot be a party to the Arbitration proceeding s, and ii) the Arbitral Tribunal does not have the jurisdiction to arbitrate on disputes which relate to rights in rem. In the case of Booz Allen & Hamilton In c Vs. SBI Home Finance Ltd. & Ors reported in (2011) 5 SCC 532, the Apex Court o bserved that - (cid:28)35. Arbitral tribunals are private fora chosen voluntarily by the parties to th e dispute, to adjudicate their disputes in place of courts and tribunals which are public fora constituted under the laws of the country. Every civil or commer cial dispute, either contractual or non-contractual, which can be decided by a c ourt, is in principle capable of being adjudicated and resolved by arbitration u nless the jurisdiction of arbitral tribunals is excluded either expressly or by necessary implication. Adjudication of certain categories of proceedings are res erved by the Legislature exclusively for public fora as a matter of public polic y. Certain other categories of cases, though not expressly reserved for adjudica tion by a public fora (courts and Tribunals), may by necessary implication stand excluded from the purview of private fora. Consequently, where the cause/disput e is inarbitrable, the court where a suit is pending, will refuse to refer the p arties to arbitration, under section 8 of the Act, even if the parties might hav e agreed upon arbitration as the forum for settlement of such disputes. The well recognized examples of non-arbitrable disputes are : (i) disputes relating to r ights and liabilities which give rise to or arise out of criminal offences; (ii) matrimonial disputes relating to divorce, judicial separation, restitution of c onjugal rights, child custody; (iii) guardianship matters; (iv) insolvency and w inding up matters; (v) testamentary matters (grant of probate, letters of admini stration and succession certificate); and (vi) eviction or tenancy matters gover ned by special statutes where the tenant enjoys statutory protection against evi ction and only the specified courts are conferred jurisdiction to grant evictio n or decide the disputes. The well recognized examples of non-arbitrable disputes are : (i) disput 36. es relating to rights and liabilities which give rise to or arise out of crimina l offences; (ii) matrimonial disputes relating to divorce, judicial separation, restitution of conjugal rights, child custody; (iii) guardianship matters; (iv) insolvency and winding up matters; (v) testamentary matters (grant of probate, l etters of administration and succession certificate); and (vi) eviction or tenan cy matters governed by special statutes where the tenant enjoys statutory protec tion against eviction and only the specified courts are conferred jurisdiction to grant eviction or decide the disputes. (cid:29) 20. In the Case of Atul Singh Vs. Sunil Kumar Singh reported in (200 8) 2 SCC 602, it was also observed that in order to get share of profits from t he partnership business, it was absolutely essential for the plaintiff appellant s to have the partnership deed dated 17.2.1992 declared as illegal, void and ino perative. The relief for such a declaration could only be granted by the civil C ourt and not by an arbitrator as they or Shri Rajendra Prasad Singh through whom the plaintiffs derived title, are not party to the said deed. The trial Court h ad, therefore, rightly held that the matter could not be referred to arbitration and the view to the contrary taken by the High Court is clearly illegal. Learned counsel for the appellant submitted that it would be ver 21. y much clear that the Arbitration proceedings, which the Respondent No. 1 propos es to initiate cannot be effectively disposed of in the facts and circumstances of the instant case and consequently, there in no prima-facie case for grant of any interim measures. 22. Learned counsel for the appellant pointed out that in the instan t case, a ridiculous situation has emerged, whereby the rights and liabilities o f the Appellant, would be decided in an Arbitration proceedings, wherein the App ellant cannot participate and the learned Court below failed to take into accoun t the said aspect of the matter in the proper perspective. 23. Learned counsel for the Respondent No.1 submitted that a lis was created in respect of the suit land during the pendency of Title Suit No. 342/2 011 and during the pendency of the said lis, the suit land was sold and as such in view of Section 52 of the Transfer of Property Act, 1882, the purchase of the suit land was not legally enforceable. The learned Court below in the impugned Judgment had also given a categorical finding to that effect that as the lis was created during the pendency of the suit, the purchase of the suit land during l is by the Appellant was not legally enforceable. Learned counsel for the appella nt pointed out that the said observations and findings of the learned Court belo w are against the doctrine of lis pendens. 24. The doctrine of lis pendens as enshrined in Section 52 of the Tr ansfer of Property Act, 1882 is that if there is any transfer of any immovable p roperty pendent-lite, the same shall not affect the rights of the parties in res pect to the immovable property. Alternatively, any Judgment or Decree passed by the Court in the matter during the pendency of which the transfer had taken plac e would be binding upon the purchaser, who purchased the property pendente lite. The Hon’ble Supreme Court in the case of Nagubai Ammal & Ors Vs. B. Shama Rao & Ors. reported in AIR 1956 SC 593, observed that sale was no doubt pendente lite , but the effect of section 52 is not to wipe it out altogether but to subordina te it to the rights based, on the decree in the suit. As between the parties to the transaction, however, it was perfectly valid, and operate to vest the title of the transferor in the transferee. 25. The Apex Court while dealing with lis pendense in the case of T. G. Ashok Kumar Vs. Govindammal & Anr, reported in (2010) 14 SCC 370, observed as follows: In Jayaram Mudaliar v. Ayyaswami (AIR <http://www.indiankanoon.org/doc/1 (cid:28)12. 690960/> 1973 SC 569) this court held that the purpose of Section 52 of the Act is not to defeat any just and equitable claim, but only to subject them to the a uthority of the court which is dealing with the property to which claims are put forward. This court in Hardev Singh v. Gurmail Singh <http://www.indiankanoon.o rg/doc/286167/> (2007) 2 SCC 404 held that Section 52 of the Act 8 does not dec lare a pendente lite transfer by a party to the suit as void or illegal, but onl y makes the pendente lite purchaser bound by the decision in the pending litigat ion. 13. The principle underlying Section 52 is clear. If during the pendency of any suit in a court of competent jurisdiction which is not collusive, in which any r ight of an immovable property is directly and specifically in question, such pro perty cannot be transferred by any party to the suit so as to affect the rights of any other party to the suit under any decree that may be made in such suit. I f ultimately the title of the pendente lite transferor is upheld in regard to th e transferred property, the transferee’s title will not be affected. 14. On the other hand, if the title of the pendente lite transferor is recog nized or accepted only in regard to a part of the transferred property, then the transferee’s title will be saved only in regard to that extent and the transfer in regard to the remaining portion of the transferred property to which the tra nsferor is found not entitled, will be invalid and the transferee will not get a ny right, title or interest in that portion. 15. If the property transferred pendente lite, is allotted in entirely to so me other party or parties or if the transferor is held to have no right or title in that property, the transferee will not have any title to the property. Where a co-owner alienates a property or a portion of a property representing to be t he absolute owner, equities can no doubt be adjusted while making the division during the final decree proceedings, if feasible and practical (that is without causing loss or hardship or inconvenience to other parties) by allotting the pro perty or portion of the property transferred pendente lite, to the share of the transferor, so that the bonafide transferee’s right and title are saved fully or partially. (cid:29)
Arguments
7. According to the learned counsel for the appellant, the Arbitrat ion Clause which is contained in Clause 15 of the Agreement for Sale cannot be i nvoked against the Proforma Respondent No. 2 and not to speak of Proforma Respon dent Nos. 4, 5 and 6, who had nothing to do with the Agreement dated 01.02.2011. 8. Learned counsel for the appellant relying on the judgment of the Hon’ble Supreme Court in Gangs Saran Vs. Firm Ram Saran Ram Gopal reported in A IR 1952 SC 9 submitted that the true construction of an Agreement must depend up on the import of the words used and not upon what the parties chose to say after wards. The relevant extract of paragraph 6 is quoted here-in-below: (cid:28) & & & & Since the true construction of an agreement must depend upon the import of the words used and not upon what the parties choose to say afterwards, it is un necessary to refer to what the parties have said about it. (cid:29) 9. Learned counsel for the appellant submitted that the Agreement d ated 01.02.2011, cannot be legally enforced against the Proforma Respondent Nos. 2, 4, 5 and 6, and as the said Agreement cannot be legally enforced against the said Proforma Respondents, the passing of the impugned order by the Learned Cou rt below is illegal and arbitrary. 10. Learned counsel for the appellant further pointed out that witho ut prejudice to the aforementioned submission, for the sake of argument, if it i s construed that the Agreement for Sale was between the Proforma Respondent No. 2 and the Respondent No. 1 then also the dispute in question cannot be settled b y Arbitration, in terms with Clause 15 of the Agreement dated 01.02.2011, inasmu ch as the Appellant is not a party to the Arbitration Agreement. The dispute so raised by the Respondent No. 1 is for the alleged breach of the Agreement dated 01.02.2011 by the Proforma Respondent No. 2, for which it has sought for a decre e for specific performance of the Agreement dated 01.02.2011. This aspect of the matter is apparent from a reading of the reliefs claimed in Title Suit No. 342/ 2011. But the question which arise for consideration is as to whether the said s pecific performance of the Agreement dated 01.02.2011 could be sought for in abs ence of the Appellant, who admittedly had purchased a part of the Schedule - ’C’ , property from the Proforma Respondent Nos. 2, 4, 5 and 6 vide Registered Deeds of Sale and more so, in terms of Section 54 of the Transfer of Property Act, 18 82, the right, title and interest in respect to the said lands stood transferred by way of sale. 11. Learned counsel for the appellant pointed out that there cannot be an Arbitration in respect to a dispute which involves parties, who are not pa rties to the Arbitration Agreement. Another relevant question was also indicate d as to whether an Arbitral Tribunal can decide a dispute of specific performanc e of the Agreement for Sale dated 01.02.2011, without taking into consideration the admitted position that the lands against which specific performance has been sought for have already been sold off. All these above questions are relevant f or adjudication of the instant dispute, inasmuch as the aforesaid aspects touche s on the very jurisdiction of the learned Court below, for grant of interim meas ures. 12. Undisputedly, as a matter of fact, a proceeding under Section 9 of the Act of 1996 is meant for formulating interim measures, so as to protect t he right under adjudication before the Arbitral Tribunal from being frustrated. Meaning thereby that the proceedings under Section 9 of the Act of 1996, is to g rant interim measures during the period of pre and post Arbitration proceedings. However, during the Arbitration proceedings, the parties would at liberty to t ake recourse of Section 17 of the Act of 1996. In the proceedings under Section 9 of the Act of 1996 are akeen 13. to proceedings under Order XXXIX Rule 1 and 2 of the Code of Civil Procedure, 19 08 save and except that the proceedings under Order XXXIX Rule 1 and 2 of the Co de has to be resorted to during the pendency of the Suit, whereas the proceeding s under Section 9 of the Act of 1996 is to be done pre and post Arbitration Proc eedings. However, it is not disputed that the principles for grant of injunction in a proceedings under order XXXIX Rule 1 and 2 of the Code of Civil Procedure as well as for grant of interim measures under Section 9 of the Act of 1996 are the one and the same. 14. The existence of a prima-facie case is to be tested on various f actors and one amongst them is as to whether the Arbitration proceedings, which in the instant case is to be initiated would be maintainable against the appella nt. To lend support to the aforesaid proposition, learned counsel for the appell ant drew attention of this Court to the Judgment of the Apex Court rendered in t he case of Shiv Kumar Chadha Vs. Municipal Corporation of Delhi & Anr. reported in (1993) 3 SCC 161, wherein it was observed that the purpose of temporary inju nction is, thus, to maintain the status quo. The Court grants such relief accord ing to the legal principles- ex debite justitiae. Before any such order is passe d the Court must be satisfied that a strong prima facie case has been made out b y the plaintiff including on the question of maintainability of the suit and the balance of convenience is in his favour and refusal of injunction would cause i rreparable injury to him. 15. In order to analyze the above principle, it would be relevant to take note of the facts of the instant case. The case of the Respondent No. 1 as alleged in the Application filed under Section 9 rests on an Agreement dated 01 .02.2011, for sale of 36 Bighas of land between the Proforma respondent No. 2 wi th the Respondent No. 1. The case of the Respondent No. 1 that after the cancell ation of the Power of Attorney dated 10.01.2011, the Respondent No. 1 requested the Respondent No. 2, for filing applications for seeking permission to sale so that the land could be sold out. However, the Respondent No. 2 did not do so, fo r which a Suit for specific performance was filed against the Respondent No. 2 a s well as the Respondent Nos. 3, 4, 5 and 6. The said Suit was registered and nu mbered as Title Suit No. 342/2011. In the meantime, Respondent No. 2 had filed a n application under Section 8 of the Act of 1996, for referring the matter to th e Arbitration. However, during the pendency of the said Suit i.e. Title Suit No . 342/2011, the lands in question were sold out to the Appellant. The learned Co urt of Civil Judge No. 3, Kamrup at Guwahati referred the parties to Arbitration on 19.12.2011. In the meantime, the Respondent No. 1 had filed the Application under Section 9 of the Act of 1996, seeking interim measures restraining the Ap pellant from carrying out any construction over the Suit land. 16. Apparently, Respondent No. 1 contemplated initiation of Arbitrat ion proceeding for breach of the Agreement dated 01.02.2011, for specific perfor mance of the said Agreement, which is evident on a perusal of the relief sought for in Title Suit No. 342/2011. 17. Learned counsel for the appellant raised a question as to whethe r the said dispute, in view of the various developments, be arbitrated upon, sin ce in a Suit for specific performance of an Agreement for Sale, a purchaser with or without notice of the said Agreement is a necessary party, as he would be af fected by any award so passed. In the instant case, the Appellant admittedly is a purchaser of the Suit land and any award passed by any Arbitrator would affect his rights. Unless the right over the suit land acquired by the appellant is n egated, the arbitral Court would not have jurisdiction to disturb his rights. In order to substantiate the said submission, learned counsel for the appellant re lied on the Judgment of the Hon’ble Supreme Court rendered in the case of Kastur i Vs. Iyyampurumal & ors reported in (2005) 6 SCC 733, wherein it was observed a s follows:
Decision
26. In view of the above observations, it is apparent that there is no bar in transferring a property during the pendency of litigation, but the pen dent-lite purchaser would be bound by the decision in the pending litigation. I f the suit is concluded before passing of any decree, obviously, no final decree would be forthcoming to negate and/or subordinate the transfer of property to pendent-lite purchaser and in such a situation the doctrine of lis-pendense would not have application. But there would be no legal bar on such transfer, i f the litigation is not pending any more. 27. In the case of Amit Kumar Shaw v. Farida Khatoon, reported in (2 005) 11 SCC 403, it was observed that Section 52 of the Transfer of Property A ct is an expression of the principle (cid:28)pending a litigation nothing new should be introduced (cid:29). It provides that pendente lite, neither party to the litigation, i n which any right to immovable property is in question, can alienate or otherwis e deal with such property so as to affect his appointment. This section is based on equity and good conscience and is intended to protect the parties to litigat ion against alienations by their opponent during the pendency of the suit. In or der to constitute a lis pendens, the following elements must be present: 1. There must be a suit or proceeding pending in a court of competent jurisdicti on. 2. The suit or proceeding must not be collusive. 3. The litigation must be one in which right to immovable property is directly a nd specifically in question. 4. There must be a transfer of or otherwise dealing with the property in dispute by any party to the litigation. 5. Such transfer must affect the rights of the other party that may ultimately a ccrue under the terms of the decree or order. 28. The doctrine of lis pendens applies only where the lis is pen ding before a court. Further pending the suit, the transferee is not entitled as of right to be made a party to the suit, though the court has a discretion to m ake him a party. But the transferee pendente lite can be added as a proper party if his interest in the subject-matter of the suit is substantial and not just p eripheral. A transferee pendente lite to the extent he has acquired interest fro m the defendant is vitally interested in the litigation, where the transfer is o f the entire interest of the defendant; the latter having no more interest in th e property may not properly defend the suit. He may collude with the plaintiff. Hence, though the plaintiff is under no obligation to make a lis pendens transfe ree a party, under Order 22 Rule 10 an alienee pendente lite may be joined as pa rty. As already noticed, the court has discretion in the matter which must be ju dicially exercised and an alienee would ordinarily be joined as a party to enabl e him to protect his interests. The court has held that a transferee pendente li te of an interest in immovable property is a representative-in-interest of the p arty from whom he has acquired that interest. He is entitled to be impleaded in the suit or other proceedings where his predecessor-in-interest is made a party to the litigation; he is entitled to be heard in the matter on the merits of the case. 29. The object of Order 1 Rule 10 is to discourage contests on tech nical pleas, and to save honest and bona fide claimants from being non-suited. T he power to strike out or add parties can be exercised by the court at any stage of the proceedings. Under this rule, a person may be added as a party to a suit in the following two cases: (1) when he ought to have been joined as plaintiff or defendant, and is not join ed so, or (2) when, without his presence, the questions in the suit cannot be completely d ecided. 30. The power of a court to add a party to a proceeding cannot depend s olely on the question whether he has interest in the suit property. The question is whether the right of a person may be affected if he is not added as a party. Such right, however, will necessarily include an enforceable legal right. Now question arises, whether the concept of lis pendense as prov 31. ided u/s 52 of the Transfer of Property Act can be imported in an arbitration pr oceeding. 32. Once the suit is disposed of in terms of arbitration agreement b y referring the matter to the arbitration, all obligations would be governed in terms of the Arbitration and Conciliation Act, 1996, after the matter is referre d to the Arbitrator. The suit which was filed initially would not remain stayed ; rather it stands disposed of upon allowing an Application under Section 8 of t he Act. . The rights of the parties would be adjudicated in terms of the agree ment between them not otherwise. Therefore, as held by the learned trial court, the doctrine of lis-pendense cannot be stretched to an arbitration proceeding. 33. It would be pertinent mention herein that the provisions of Sect ion 8 of the Act of 1996 is a reference of the dispute to Arbitration and as suc h the lis would not continue till the disposal of the Arbitration proceedings. T he position of law is when an Order is passed under Section 8 of the Act of 1996 , it is the reference of the parties to Arbitration, whereby the judicial author ity only refuses to decide the action before it leaving the parties at their own sweet will to have recourse to the remedies by way of Arbitration if they so wi sh. The Suit proceedings come to an end after an Order allowing the said Applica tion under Section 8 of the Act of 1996 is passed. In this regard, the judgment of the Hon’ble Supreme Court in the case of P. Anand Gajapathi Raju Vs. P.V.G. R aju reported in (2000) 4 SCC 539, observed that the language of Section 8 is per emptory. It is, therefore, obligatory for the Court to refer the parties to arbi tration in terms of their arbitration agreement. Nothing remains to be decided i n the original action or the appeal arising therefrom. There is no question of s tay of the proceedings till the arbitration proceedings conclude and the Award b ecomes final in terms of the provisions of the new Act. All the rights, obligati ons and remedies of the parties would now be governed by the new Act including t he right to challenge the Award. The Court to which the party shall have recours e to challenge the Award would be the Court as defined in clause (e) of Section 2 of the new Act and not the Court to which an application under Section 8 of th e new Act is made. An application before a Court under Section 8 merely brings t o the Courts notice that the subject matter of the action before it is the subje ct matter of an arbitration agreement. This would not be such an application as contemplated under Section 42 of the Act as the Court trying the action may or m ay not have had jurisdiction to try the suit to start with or be the competent C ourt within the meaning of Section 2 (e) of the new Act. (cid:29) 34. In the case of State of Goa Vs. M/s Praveen Enterprise (Civil Ap peal No. 4987/2011), the Apex Court observed the effect of an Order under Sectio n 8 of the Act of 1996, in the following words: (cid:28) & &When the judicial authority finds that the subject matter of the suit is cove red by a valid arbitration agreement between the parties to the suit, it will re fer the parties to arbitration, by refusing to decide the action brought before it and leaving it to the parties to have recourse to their remedies by arbitrati on. When such an order is made, parties may either agree upon an arbitrator and refer their disputes to him, or failing agreement, file an application under sec tion 11 of the Act for appointment of an arbitrator. The judicial authority ‘ref erring the parties to arbitration’ under section 8 of the Act, has no power to a ppoint an arbitrator. It may however record the consent of parties to appoint an agreed arbitrator. (cid:29) 35. In view of the above, the Suit stands disposed off upon an Appli cation under Section 8 being allowed. In the present case also the trial Court b y its Order dated 19.12.2011, allowed the application filed under Section 8 Appl ication and thereby nothing remained in the said Suit proceedings. As rightly po inted out by the learned counsel for the appellant, there was no Judgment and De cree by which any rights of the parties have been decided and as such the rights which had flowed upon the Appellant by virtue of the Registered Deeds of Sale i s perfectly valid without any fetters and operates to vest the title of the Suit land upon the Appellant. The doctrine of lis pendense would not operate, if th e suit is disposed of directing parties to approach for adjudication in terms of Arbitration clause. Learned counsel for the appellant by referring to the question o 36. f prima-facie case submitted that the Agreement between the parties i.e. Agreeme nt dated 01.02.2011 was not enforceable. The contract in question was a contract for sale and purchase of property within a period of four months from the date execution of the said Agreement. In this regard, Clauses 2, 3 and 4 of the Agree ment dated 01.02.2011 is relevant wherein it was specifically mentioned that the execution and registration of the Sale Deed shall be done within a period of fo ur months. Thus, the intentions of the parties were very clear in respect to the Agreement in question that the Registered Deeds of Sale would be executed withi n a period of 4 months. It was the responsibility of the Respondent No. 1 to obt ain permission for sale. However, there is nothing on record that the Respondent No. 1 had taken steps for taking out permission, within the period of four mont hs from the date of execution of the Agreement i.e. 01.02.2011. It was only on 0 9.09.2011, for the first time, the Respondent No. 1 took steps for applying for permission by writing a letter to the Proforma Respondent No. 2 to submit certai n applications. It was the responsibility of the Respondent No. 1 in terms of th 37. e contract to apply for the permission from the concerned authorities and obtain the same so that the Deeds of Sale could be executed and registered within a pe riod of four months, the Respondent No. 1 having failed to do so, now cannot cla im specific performance of the contract. In order to substantiate the said submi ssion, appellant relied on the decision of the Apex Court rendered in the case o f Citadel Fine Pharmaceuticals Vs. Ramaniyam Real Estates (P) Ltd., reported in (2011) 9 SCC 147, wherein it was observed as follows: (cid:28)46. The instant case obviously relates to a contract in commercial transaction and the Court can take judicial notice of the fact that in the city of Chennai t he price of 34 real estate is constantly escalating and the clear intention of t he parties, as it appears from the stipulations of the agreement, was to treat t ime as the essence of the contract. 47. Having regard to the aforesaid principles the court cannot attribute a diffe rent intention to the parties and cannot specifically enforce the contract at th e instance of the plaintiff-purchaser who has failed to perform his part of the obligation within the time stipulated. 48. In K.S. Vidyanadam and others v. Vairavan <http://www.indiankanoon.org/doc/7 56653/> reported in (1997) 3 SCC 1 this Court explained how discretion is to be exercised by the Court before granting specific performance. This Court held tha t in cases of urban properties in India it is well known that prices are going u p 35 sharply over the last few decades particularly after 1973. In Vidyanadam (s upra) the court was dealing with a property in Madurai in the State of Tamil Nad u and it was argued before this Court by referring to the Madras High Court judg ment in S.V. Sankaralinga Nadar v. P.T.S. Ratnaswami Nadar (AIR <http://www.indi ankanoon.org/doc/1377253/> 1952 Mad 389) that mere rise in price is no ground fo r denying the specific performance. This Court did not agree with the decision o f the Madras High Court and held that the Court cannot be oblivious of the reali ty of constant and continuous rise in the value of urban properties. In that con text the time limit set in the contract has to be strictly construed. In the cas e of Vidyanadam (supra) there is no such strict stipulation as time being of the essence of the contract as is in the instant case even then the Court refused 3 6 to grant the relief of specific performance (cid:29). 38. Learned counsel for the appellant submitted that if there is a b reach of the terms of the Agreement dated 01.02.2011, by the Proforma Respondent No. 3 after obtaining the Sale Permission, then the said Proforma Respondent wo uld have to return the entire advanced consideration of Rs. 25,00,000/- alongwit h partial payment if any made in terms with Clause 7 to the Respondent No. 1 wit hin 15 days without any delay. In the present case admittedly, no sale permissio n was obtained. Ex-facie in view of the provisions contained in the Agreement da ted 01.02.2011, the parties having predetermined and quantified the damages amon gst themselves, in the eventuality of breach, and as such in terms with Section 14 (1)(a) of the Specific Relief Act, 1963, the Agreement in question was not sp ecifically enforceable. Learned counsel for the appellant submitted that appare ntly the compensation having been quantified by the parties to the agreement, th ere is no scope to hold that there would be irreparable loss. 39. However, the balance of convenience is another important factor to be taken into consideration, for grant of an injunction. The Court while gran ting or refusing to grant injunction should exercise sound judicial discretion t o find the amount of substantial mischief or injury which may be caused to the p arties if the injunction is refused and compare it with that which is likely to be caused to the other side if the injunction is granted. If on weighing competi ng possibilities or probabilities of likelihood of injury, the Court in its disc retion finds that the party complaining would suffer more, than in that event on ly, an injunction can be granted. 40. Keeping in view the principle as regards balance of convenience, it would be pertinent to examine the facts relevant to determine the issue. 41. Learned counsel for the appellant contended that the Respondent No. 1 in its Application under Section 9, at paragraph 31 had stated that the ba lance of convenience lies in its favour on the ground that the Respondent No. 1 had entered into an Agreement for Sale dated 01.02.2011 and the Respondent No. 1 is always ready and willing to perform its part for completion of the sale tran saction and if the Appellant is not restrained, the whole Arbitration proceeding s would be frustrated. It is on this specific ground, the Respondent No. 1 claim ed that the balance of convenience is in favour of the Respondent No. 1. It is r espectfully submitted in this regard that the said submission of the Respondent No. 1 has an inherent defect on two counts. First, the Arbitration proceedings w hich the Respondent No. 1 contemplates is not maintainable for the reasons alrea dy stated hereinabove and secondly, the terms and conditions of the Agreement da ted 01.02.2011 clearly goes against the Respondent No. 1 in as much as on one ha nd, the Agreement states that if there is a failure to execute the Deed of Sale after obtaining the permissions, the entire advanced amount of Rs.25,00,000/- an d the part payment as per Clause 7 would be refunded back within 15 days and on the other hand, the said Agreement for Sale entrusts the responsibility of obtai ning the permissions from the concerned authority and consequent execution of th e Deed of Sale within a period of four months making the time the essence of the contract. Under such circumstances, the balance of convenience could not have b een in favour of the Applicant for grant of an injunction. On the other hand, th e Appellant is a bonafide purchaser of the Schedule Land by investing huge amoun ts of money and is in possession of the Schedule Land. There was no challenge to the Deeds of Sale in any manner whatsoever and as such the Appellant’s rights o ver the Schedule Land would be infringed if only any interim measures as in the present case was granted against the Appellant. This valuable right of the Appel lant in respect to the Suit land cannot be taken away without following the due process of law. Learned counsel for the appellant submitted that under such circ umstances, the balance of convenience was in favour of the Appellant for not gra nting any interim measures. 42. Learned counsel for the appellant pointed out that the third and very important condition to be satisfied for the grant of an injunction is - wh ether non-interference by the Court would result irreparable injury to the party seeking relief. Further, is there any other remedy available to the party exce pt the one to grant injunction and the party needs protection from the consequen ces of apprehended injury? 43. An irreparable injury does not connote that there must be no phy sical possibility of repairing the injury, but it means only that the injury mus t be a material one, namely, one that cannot be compensated by way of damages. I n this context the relevant decision of the Apex Court rendered in the case of B est Sellers Retail (India) (P) Ltd. Vs. Aditya Birla Nuvo Ltd., reported in (201 2) 6 SCC 792, reads as follows. (cid:28)26. It has been held by this Court in Kishoresinh Ratansinh Jadeja v. Maruti Corpn. that it is well established that while passing an interim order of injun whether there is a prima facie case in favour of the plaintiff; whether the balance of convenience is in favour of passing the order of ction under Order 39 Rules 1 and 2 CPC, the Court is required to consider: (i) (ii) injunction; and (iii) nction would not be passed as prayed for. Hence, we only have to consider whether these well-settled principles relating t o grant of temporary injunction have been kept in mind by the trial court and th e High Court. whether the plaintiff will suffer irreparable injury if an order of inju 29. Yet, the settled principle of law is that even where prima facie case is in favour of the plaintiff, the Court will refuse temporary injunction if the i njury suffered by the plaintiff on account of refusal of temporary injunction wa s not irreparable. To quote the words of Alderson, B. in Attorney General v. Hallett: (ER p 36. . 1321) (cid:28) & I take the meaning of irreparable injury to be that which, if not prevented b y injunction, cannot be afterwards compensated by any decree which the court can pronounce in the result of the cause. (cid:29) 44. Learned counsel for the appellant rightly pointed out that a per usal of the Agreement dated 01.02.2011, on the basis of which the Respondent No. 1 claims all its rights, the clauses therein and more particularly Clauses 4, 5 , 6, 7 and 10 would go to show that if there is a breach on the part of the Prof orma Respondent No. 3, the Respondent No. 1 would be entitled to the entire adva nced amount alongwith the part payments made in terms with Clause - 7 and nothin g more. Furthermore, since the amount has already been returned along with the D eed of Cancellation, the question of irreparable loss, harm and injury ex-facie does not arise in the facts of the case. 45. Learned counsel for the appellant raising the question of appell ant Court’s jurisdiction to interfere with the grant of an injunction submitted that the Appellate Court in normal course would not interfere with the exercise of discretion of the Court of the first instance and substitute its own discreti on except where the discretion has been shown to have been exercised arbitrarily or capriciously or perversely or where the Court had ignored the well settled p rinciples of law regulating grant or refusal of interlocutory injunction. 46. In this regard, the Hon’ble Supreme Court in the case of Wanders Ltd. & Anr. Vs. Antox India P. Ltd. reported in 1990 (Suppl) SCC 727 , observed that the appeals before the Division Bench were against the exercise of discret ion by the Single Judge. In such appeals, the appellant court will not interfere with the exercise of discretion of the court of the first instance and substitu te its own discretion except where the discretion has been shown to have been ex ercised arbitrarily, or capriciously or perversely or where the court had ignore d the settled principles of law regulating grant or refusal of interlocutory inj unctions. An appeal against exercise of discretion is said to be an appeal on pr inciple. Appellate court will not reassess the material and seek to reach a conc lusion different from the one reached by the court below if the one reached by t hat court was reasonably possible on the material. The appellate court would nor mally not be justified in interfering with the exercise of discretion under appe al solely on the ground that if it had considered the matter at the trial stage it would have come to a contrary conclusion. If the discretion has been exercise d by the trial court reasonably and in a judicial manner the fact that the appel late court would have taken a different view may not justify interference with t he trial court’s exercise of discretion. After referring to these principles Gaj endragadkar J. in Printers (Mysore) Ltd. Vs. Pothan Joseph- (cid:28)These principles are well settled, but as has been observed by Viscount Simon i n Charles Ostenton and Co. Vs. Jhanaton ’ & &the law as to the reversal by a court of appeal of an order by a Judge below in the exercise of his discretion is wel l established, and any difficulty that arises is due only to the application of the well settled principles in an individual case’. (cid:29) Mr. Baruah, learned counsel for the appellant referring to the i 47. mpugned order submitted that the findings arrived at by the learned Court below that- (cid:28)It is not the duty of the Court to look out whether its Order passed as a n interim measure in respect to the subject matter of the dispute is affecting a ny third party or not (cid:29) is on the face of it an arbitrary, unreasonable and a cap ricious finding inasmuch as Courts are fountain head of justice and to be not bo thered about any order passed against a third party, who cannot participate in t he Arbitration proceedings is in basic violation of the fundamental principles o f natural justice. 48. Mr. Baruah, learned counsel for the appellant pointed out that t he non application of mind into the three golden principles which regulates the grant of an injunction and the non recording of any finding on the issue of irre parable loss, harm and injury in the impugned order is on the face of it in viol ation to the well settled principles, for grant of an injunction and submitted t hat this is a fit case that the impugned Judgment and Order is liable to be set aside. 49. Learned counsel for the Respondent No. 1 submitted that the Appe llant having purchased the property during the pendency of the Civil Suit No. Ti tle Suit No. 342/2011 and as such the Appellant is bound by the orders passed in the said Suit and till the disposal of the Arbitration proceedings, the Appella nt is not entitled to change the nature and character of the land in dispute. 50. In reply to the above submission, learned counsel for the appell ant pointed out that while disposing of the Title Suit No. 342/2011, there has b een no directions passed adjudicating any rights of any of the parties in the sa id Suit. What the learned Court of the Civil Judge No. 3, Kamrup at Guwahati did was by an Order dated 19.10.2011, allowed the Application under Section 8 of th e Act of 1996 and thereby referred the parties to Arbitration without deciding a nything on merits, thereby leaving the parties to initiate the Arbitration proce edings, if they desired so. Under such circumstances, the contention so made by the Respondent No. 1 as already stated herein above is not tenable. 51. Learned counsel for the respondent submitted that the right of t he Appellant is not an independent right, but it flows from the Proforma Respond ent No. 2 and the Proforma Respondent No. 2 being a party to the Arbitration Agr eement and if any decision is made in the Arbitration proceedings, whereby the P roforma Respondent No. 2 is deprived of any property, the same shall affect the Appellant being the purchaser. In reply to the above submission, learned counsel for the appell 52. ant pointed out that the Arbitrator while deciding the disputes cannot be oblivi ous of the fact that the property in question had already been transferred to th e Appellant and therefore, unless the aforesaid transfer is set aside by a Court of competent jurisdiction, by no award can the Arbitrator direct the Proforma R espondent No. 2 to execute the Deed of Sale in execution of the award. 53. Learned counsel for the appellant submitted that the Arbitration proceedings cannot be maintained against the Appellant or touching upon the rig hts of the Appellant, inasmuch as the Appellant is not a party to the said Arbit ration proceedings nor he was party to the agreement between them. Therefore, t he injunction against the appellant’s right is arbitrary and illegal. 54. Learned counsel for the respondent submitted that under Section 9 of the Act of 1996, the Court before whom the Application is pending has right and jurisdiction to issue any interim order restraining the third party. In sup port of the said submission, learned counsel for the Respondent No. 1 relied upo n two Judgments of the Bombay High Court rendered in the case of Girish Mulchand Mehta and Durga Jaishankar Mehta Vs. Mahesh S. Mehta and Harini Cooperative Hou sing Society Ltd. reported in MANU/MH/1458/2009 and Heritage Lifestyles and Deve lopers Pvt. Ltd. Vs. Amarvilla Co-operative Housing Society Ltd., Mrs. Sandhya R . Rao and Mr. Navnitlal P. Shroff reported in MANU/MH/0380/2011. An order under Section 9 of the Act of 1996 can be passed agains 55. t a third party, is not an absolute proposition of law in as much as if the said proposition is accepted it would mean that as interim measures could be sought even against a person, who is not connected with the subject matter of an arbitr ation agreement. Learned counsel for the appellant submitted that the Judgments to which the Respondent No. 1 has referred to had categorically stated that Orde r under Section 9 of the Act of 1996 can be passed against a third party, if suc h person is claiming under the party to the Arbitration Agreement. In the instan t case, however, the Appellant is claiming an independent right on the basis of Registered Deeds of Sale being executed in its favour and also being in possessi on of the Schedule land in question. Learned counsel for the appellant pointed o ut that the appellant is not claiming any right under the Respondents and as suc h no interim measures could be passed against the appellant, but the learned Cou rt below however failed to appreciate very vital distinction between a person cl aiming under and the person who had purchased the property from the vendor with or without notice of the Contract and therefore, submitted that the ratio of the judgments rendered by the Hon’ble Bombay High Court has no relevance to the ins tant dispute. 56. In the case of Girish Mulchand Mehta vs. Mahesh S. Mehta (supra) , the Bombay High Court observed that the purport of Section-9 has been expounde d by the Apex Court in the case of Firm Ashok Traders & anr. vs. Gurmukhdas Salu ja & ors. reported in AIR 2004 SC 1433. It considered the scheme of Section 9 of the Act. It has held that application under Section 9 is not a suit although su ch application results in initiation of civil proceedings. It went on to observe that the right conferred by Section 9 is on a party to an Arbitration Agreement . That Section-9 has relevance to the locus standi as an applicant. A person not party to an arbitration agreement cannot enter the Court for protection under S ection 9 of the Act. In other words, the party to an Arbitration Agreement can i nvoke this jurisdiction for securing relief which the Court has power to grant b efore, during or after arbitral proceedings by virtue of Section 9 of the Act. 57. The Apex Court had observed that Section 9 has nothing to do wit h the relief which is sought for from the Court or the right which is sought to be canvassed in support of the relief. The Court is competent to grant reliefs t o a party under Clauses (i) and (ii) of Section 9 which flow from the power vest ing in Court exercisable by reference to \contemplated\, \pending\ or \completed \ arbitral proceedings. The Court is conferred with the same power for making th e specified orders as it has for the purpose before it though the venue of the p roceedings in relation to which the power under Section 9 is sought to be exerci sed is the Arbitral Tribunal. It is thus clear that the relief sought in such ap plication is neither in a suit nor a right arising from a contract. The Court un der Section 9 only formulates interim measures so as to protect the right under adjudication before the Arbitral Tribunal from being frustrated. It has been sub mitted on behalf of the appellant that remedy under Section 9 cannot be pursued against a person, who is not party to an arbitration agreement or arbitration pr oceedings. 58. The Appellant, however, placed reliance on the decision of the K erala High Court in the case of Shoney Sanil v/s. M/s. Coastal Foundations (P) L td. & Ors. reported in AIR 2006 Kerala (206). In that case the question consider ed was whether the writ-petitioner, admittedly, a third party to an alleged Arbi tral Agreement between the Respondents inter se, and who had in his favour a con firmed Court sale and certificate of such sale and delivery of possession, follo wing and arising under an independent decree, could be dispossessed, injuncted o r subjected to other Court proceedings under Section 9 of the Act? The Kerala Hi gh Court held that orders under Section 9 (ii)(c) can be passed only in relation to subject matter of dispute in arbitration, which may be in possession of any party since it is not the intention of the Act or any arbitration proceedings as conceived by the law of Arbitration to interfere with or interpolate third part y rights. It concluded that on a plain reading of Section 9 of the Act and going by the Scheme of the said Act, there is no room to hold that by an interim meas ure under Section 9, the rights of third party holding possession on the basis o f Court sale could be interfered with, injuncted or subjected to proceedings und er Section 9 of the Act. Instead, it held that Section 9 of the Act contemplates issuance of interim measures by the Court only at the instance of party to Arbi tration Agreement with regard to the subject matter of the Arbitration Agreement . The Court has, however, noted that such order can be only against the party to an Arbitration Agreement or at best against any person claiming under him. The Principle expounded in this decision is that if a third party has independent ri ght in the subject matter of the Arbitration Agreement, Section 9 cannot be invo ked to affect his rights. At the same time, the Kerala High Court has plainly op ined that it is possible to pass orders under Section 9 against a third party if such person is claiming under the party to the Arbitration Agreement. 59. Therefore, Section 9 can be invoked even against a third party, who is not party to an arbitration agreement or arbitration proceedings, if he w ere to be person claiming under the party to the arbitration agreement and likel y to be affected by the interim measures. 60. In the instant case, admittedly the appellant herein is claiming independent right in respect of the subject matter of the Arbitration Agreement on their own and not claiming under the Respondent No. 2 alone, who is a party to the Arbitration Agreement. In such a situation, the Court would not have juri sdiction to pass appropriate order by way of interim measures against the appell ant herein, since he is not a party to the Arbitration Agreement or the Arbitrat ion Proceedings. Again in the case of Heritage Lifestyles & Developers vs. Amar - Admittedly, there is an arbitration clause between the parties, and ther 61. Villa Co-operative Housing Society Ltd., Bombay High Court observed that - (cid:28)4. e exist an arbitrable dispute as raised. The scheme of Section 9 has been elabor ated by the Apex Court in various judgments. It is now made clear that all the p rovisions of the Code of Civil Procedure (CPC) which are necessary for passing a n appropriate order under Section 9 needs to be taken note of which includes Sec tion 9A, Order 37, Order 38, Order 39, Rules 1 and 2, Order 40 of C.P.C.. Theref ore, while passing any order under Section 9, from the facts and circumstances, the Court needs to consider all desired facets which are otherwise available for passing ad-interim, interim and/or even mandatory order. There is no bar and if case is made out, I see there is no reason that the Court under Section 9 , can not pass such order, even against the person who is not the party to the agreeme nt, but specially when such third person is claiming protection or right through the party who is consenting party to the arbitration agreement. 18. The Division Bench in Girish Mulchand Mehta (supra) has affirmed above reas oning and observed as under : \12 The next question is whether order of formulating the interim measures can b e passed by the Court in exercise of powers under Section 9 of the Act only agai nst a party to an Arbitration Agreement or Arbitration proceedings. As is notice d earlier, the jurisdiction under Section 9 can be invoked only by a party to th e Arbitration Agreement. Section 9, however, does not limit the jurisdiction of the Court to pass order of interim measures only against party to an Arbitration Agreement or Arbitration proceedings; whereas the Court is free to exercise sam e power for making appropriate order against the party to the Petition under Sec tion 9 of the Act as any proceedings before it. The fact that the order would af fect the person who is not party to the Arbitration Agreement or Arbitration pro ceedings does not affect the jurisdiction of the Court under Section 9 of the Ac t which is intended to pass interim measures of protection or preservation of th e subject matter of the Arbitration Agreement. 62. As a matter of fact, Section 9 can be invoked even against a th ird party, who is not party to an arbitration agreement or arbitration proceedin gs, if he is a person claiming under the party to the arbitration agreement and likely to be affected by the interim measures. But in the instant case, the Appe llant herein has substantiated that he is claiming independent right in respect of the property in question, which he purchased from other respondents including the Respondent No.2, who is party to the arbitration agreement. 63. In the present case, the appellant has acquired an independent r ight. Therefore, the appellant cannot equated with a person claiming under the o riginal vendor. The relief or any award in the arbitration proceeding in between the Respondent No.1 and Respondent No.3 would not be able to disturb the right acquired by the appellant by valid purchase from the original owners. Furthermo re, the Arbitral Tribunal would not be able to take away the right acquired by t he appellant by way of valid purchase from the vendors and original owners. 64. Section 9 of the Act is attracted only if the nature of dispute is subject matter of Arbitration proceedings or agreement. It does not contempla te any such relief which does not stem from the Arbitration Proceedings or the d isputes referred to in arbitration for adjudication. The Kerala High Court in th e case of Shoney Sanil V. M/s.Coastal Foundations (P) Ltd. and others (AIR 2006 KERALA 206) was pleased to lay down as under: (cid:28)The interim measures which are co nceived by the Legislature while enacting S.9 are those interim measures which r elate to the arbitration agreement between the parties and being interim, they a re to confine to the matters relating to the arbitration agreement between the p arties. This intention is explicit from the opening words of S.9, which provides for the party to apply for interim me